Background to the complaint

1. According to the EU Treaties, the European Commission may take legal action – an infringement procedure – against an EU Member State that fails to implement EU law. The Commission identifies possible infringements of EU law on the basis of its own investigations or following complaints from citizens, businesses or other stakeholders.[1] The EU Pilot procedure is a mechanism for an informal dialogue between the Commission and the Member State concerned on issues relating to a potential non-compliance with EU law. It is used before a formal infringement procedure is launched.[2]

2. In November 2022, the complainant made a request for public access to documents[3] to the Commission concerning an infringement complaint (CHAP(2016)00511) and a subsequent EU Pilot procedure (EU/ACC/16/8584). The procedure in question concerned the alleged infringement by Spain of Article 5 of the Energy Taxation Directive (Directive 2003/96/EC).[4]

3. In January 2023, the Commission replied to the request, listing 17 documents identified as falling within its scope. It gave full or partial access to 13 documents, redacting only personal data.[5] It refused access to four letters originating from the Spanish authorities (hereafter ‘the documents’) on the basis of the exception for the protection of court proceedings.[6]

4. The complainant requested the Commission to review its decision to refuse access to the four documents originating from Spain (by making a ‘confirmatory application’).

5. In April 2023, the Commission replied maintaining its position that access cannot be granted to the four documents.

6. Dissatisfied with the Commission’s response, the complaint turned to the Ombudsman on 5 April 2023.

The inquiry

7. The Ombudsman opened an inquiry into the Commission’s refusal to grant public access to the documents sought by the complainant, based on the need to protect court proceedings.

8. In the course of the inquiry, the Ombudsman inquiry team inspected the four documents in question, as well as the documentation relating to the consultation of the Spanish authorities.[7]

Arguments presented

9. In the confirmatory decision, the Commission explained that the four documents in question were received from the Spanish authorities in the context of the EU Pilot procedure. They contain detailed legal considerations of the Spanish authorities on the compatibility of their national legislative framework with the Energy Taxation Directive, with respect to regional differentiation on the tax on hydrocarbons in Spain. The EU Pilot procedure has in the meantime been closed by the Commission.

10. The Commission stated that the Spanish authorities opposed disclosure, on the grounds that “at present there are still ongoing administrative financial claims and appeals lodged with el Tribunal Económico-Administrativo Central, the subject matter of which relates to the documents to which access is requested”.

11. The Commission further noted that, on 1 December 2022, the Spanish Supreme Court submitted a request for a preliminary ruling[8] to the Court of Justice of the EU (CJEU).[9] The question referred to the CJEU concerns the compatibility of the Spanish national legislation with the Energy Taxation Directive, as regards differentiated tax rates on hydrocarbons for the autonomous communities.

12. The Commission referred to EU case-law, which recognises that the exception for the protection of court proceedings applies not only to documents prepared in the context of the relevant court proceedings. It can also apply to other documents, as long as they have a ‘relevant link’ with the court proceedings.[10]

13. The Commission further argued that it did not have to perform a detailed assessment of the Member State’s arguments opposing disclosure; it just had to verify if, prima facie, the arguments were justified.[11]

14. In this case, following “an assessment at first sight”, the Commission considered that the four documents cannot be dissociated from the pending judicial proceedings and that Spain’s arguments were justified. Disclosing the position of the Spanish authorities concerning the compatibility of the Energy Taxation Directive with the differentiated regional tax on hydrocarbons could affect the course of the judicial proceedings, the position of the parties and the principle of equality of arms.

15. The Commission noted that the complainant did not put forward, in the confirmatory application, any overriding public interest in disclosure, and that it has not itself identified one. It also concluded that partial access to the documents was not possible.

16. The complainant took issue with the Commission’s application of the exception for the protection of court proceedings. He did not contest the application of the exception for the protection of personal data.

17. The complainant pointed out that the infringement complaint and the related EU Pilot procedure are closed. In such cases, the Commission cannot rely on a ‘general presumption of confidentiality’ to deny access. Thus, the Commission should have conducted an individual assessment of the documents, rather than only an assessment at first sight of the consultation reply provided by the Spanish authorities.

18. The complainant also considered that releasing the documents could not harm the principle of equality of arms in the context of the current request for a preliminary ruling before the CJEU. In his view, this argument is not justified, since a request for a preliminary ruling is submitted only after both sides have been heard in national proceedings. Therefore, the arguments of both sides should be known.

19. The complainant further considered that there is an overriding public interest in knowing the arguments presented by the Spanish national authorities to the Commission to close the EU Pilot procedure, without providing any further details.

The Ombudsman's assessment

20. If an access request concerns a document that originates from a Member State, the EU institution to which the access request was made is obliged to consult the Member State in question before disclosing the document. If the Member State objects to the disclosure of the document, it must base its objection on the exceptions set out in Regulation 1049/2001.

21. While the EU institution concerned is not obliged to carry out an exhaustive assessment of a Member State’s objection, it needs to examine whether the Member State has based its objection on the exceptions in Regulation 1049/2001 and has given proper reasons for its position.[12] It is ultimately the responsibility of the EU institution concerned to decide on requests for public access to the documents it holds.[13]

22. Having reviewed the four documents at issue in this case, the Ombudsman confirms that they relate to an EU Pilot procedure concerning an alleged breach of Article 5 of the Energy Taxation Directive. The documents contain the legal assessment by the Spanish authorities of the compatibility of the national legislative framework with that Directive. The documents in question thus have a ‘relevant link’ to the ongoing court proceedings at national level, as required by EU case-law.[14]

23. In addition, the Ombudsman notes that there is currently a preliminary ruling request to the CJEU[15] concerning the same matter as the EU Pilot procedure. The position of the Spanish authorities - that the documents’ disclosure would harm the equality of arms between the parties in ongoing court proceedings - seems thus reasonable.

24. In light of the above, the Ombudsman considers that the Commission was justified in refusing public access to the four letters based on the exception for the protection of court proceedings.

25. The Ombudsman further notes that the Commission did not rely on a general presumption of confidentiality,[16] as the complainant seems to suggest. Rather, the Commission conducted an assessment of the documents and of the reasons provided by the Member State for their non-disclosure, as required by the EU case-law (see paragraph 21). It also provided adequate reasons to justify the need to withhold the documents in order to protect ongoing court proceedings.

26. The exception for the protection of court proceedings can be set aside if there is a public interest in disclosure that is deemed more important. The Ombudsman notes that the complainant did not put forward any specific arguments, which could establish an overriding public interest. Having reviewed the documents, the Ombudsman inquiry team has not identified an overriding public interest either.

27. In light of the above, the Ombudsman considers there was no maladministration by the Commission when it refused public access to the requested documents.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:[17]

There was no maladministration by the European Commission.

The complainant and the Commission will be informed of this decision.

 

Rosita Hickey
Director of Inquiries

Strasbourg, 07/06/2023

 

[1] More information about the infringement procedure is available at: https://commission.europa.eu/law/application-eu-law/implementing-eu-law/infringement-procedure_en.

[2] More information on EU Pilot can be found at: https://single-market-scoreboard.ec.europa.eu/enforcement-tools/eu-pilot_en.

[3] In accordance with Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32001R1049&from=EN.

[4] Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity — commonly known as the Energy Taxation Directive — is the EU’s framework for the taxation of energy products including electricity, motor and most heating fuels. Available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02003L0096-20230110.

[5] In line with Article 4(1)(b) of Regulation 1049/2001.

[6] Article 4(2) second indent of Regulation 1049/2001.

[7] Conducted in line with Article 4(4) and (5) of Regulation 1049/2001.

[8] More information about the requests for preliminary rulings is available at: https://curia.europa.eu/jcms/jcms/Jo2_7024/en/.

[9] Case C-743/22; Question referred: Must [Council] Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity, in particular Article 5 thereof, be interpreted as precluding a national provision, such as Article 50ter of Ley 38/1992 de Impuestos Especiales (Law 38/1992 on excise duties) of 28 December 1992, which authorised the autonomous communities to set differentiated rates of the excise duties on mineral oils for each territory in respect of the same product?

[10] The Commission referred to for example the Judgment of the General Court of 15 September 2016 in case T-18/15, Philip Morris v Commission, para 64: https://curia.europa.eu/juris/document/document.jsf?text=&docid=183326&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=866087.

[11] The Commission referred to the Judgment of the General Court of 8 February 2018 in case T-74/16 Pagkyprios organismos ageladotrofon (POA) Dimosia Ltd v European Commission, paras 55-57, 60-61: https://curia.europa.eu/juris/document/document.jsf?text=&docid=199205&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9088751.

[12] See footnote 11.

[13] Judgment of the General Court of 14 February 2012 in case T-59/09, Germany v Commission, paragraphs 51, 54: https://curia.europa.eu/juris/document/document.jsf?text=&docid=119422&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=517167.

[14] Judgment of the General Court of 6 February 2020, Compañía de Tranvías de la Coruña, SA v European Commission, T-485/18, paragraph 42: https://curia.europa.eu/juris/document/document.jsf?text=&docid=223086&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=5205467.

[15] A request for a preliminary ruling to the CJEU is made when, in a case before a national court, a question concerning the interpretation or validity of EU law is raised. The national proceedings must be suspended until the CJEU has given its ruling.

[16] EU case-law has established that public access to documents related to ongoing infringement procedures or EU pilot procedures, might undermine the necessary ‘climate of mutual trust’ between the Commission and the Member State in question. Disclosure could undermine the proper conduct of those procedures. The Commission may rely on a general presumption of non-disclosure to refuse access to such documents. See for example the Judgment of the General Court of 25 September 2014, Darius Nicolai and Mihaela Spirlea v European Commission, T-306/12, paragraph 57, available at: https://curia.europa.eu/juris/liste.jsf?num=T-306/12&language=EN

[17] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions